Citation NR: 9703695
Decision Date: 02/05/97 Archive Date: 02/18/97
DOCKET NO. 94-41 897 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Whether the April 5, 1954, rating decision of the agency
of original jurisdiction, which denied entitlement to service
connection for bilateral pes planus, contained clear and
unmistakable error.
2. Whether new and material evidence has been presented
sufficient to reopen a claim for entitlement to service
connection for bilateral pes planus.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Patrick J. Costello, Counsel
INTRODUCTION
The veteran had active military service from March 1943 to
April 1946.
This matter came before the Board of Veterans’ Appeals
(hereinafter the Board) on appeal from a October 1988 rating
decision of the Department of Veterans Affairs (VA) Regional
Office (RO), in St. Petersburg, Florida.
REMAND
Upon entry into the US Army in the middle of World War II,
the veteran was diagnosed as suffering from asymptomatic
first degree bilateral pes planus. During his tour of duty,
he was treated repeatedly for his pes planus.
Notwithstanding these repeated treatments, upon his
discharge, it was noted that he had asymptomatic second
degree pes planus. Over the next eight years, the veteran
attempted to have his bilateral pes planus service-connected.
He contended that while his bilateral pes planus was a pre-
existing service condition, his military service aggravated
his disability. Despite his claims, service connection was
not granted. Thirty-four years later, the veteran contacted
the RO concerning his bilateral pes planus. After being told
that he was not service-connected for this condition, he
sought to reopen his claim. His claim was then forwarded to
the Board.
The service representative, acting on behalf of the veteran,
and after reviewing the claims folder, has claimed that the
RO committed clear and unmistakable error when it issued its
April 5, 1954. He contends that in October 1953, the veteran
submitted a notice of disagreement. Instead of issuing a
statement of case, the representative avers that the RO
ignored the notice of disagreement and simply issued a new
rating decision. The representative maintains that this
action was contrary to the laws and regulations governing
rating actions and that the veteran’s due process rights were
violated.
Pursuant to 38 C.F.R. § 3.105(a) (1995), “. . . previous
determinations which are final and binding . . . will be
accepted as correct in the absence of clear and unmistakable
error.” A clear and unmistakable error claim is a collateral
attack on a final RO decision. See Smith (William) v. Brown,
35 F.3d 1516, 1527 (Fed. Cir. 1994). In order for there to
be a valid claim for clear and unmistakable error, there must
have been an error in the prior adjudication of a claim based
on the record then before the RO. See Russell v. Principi, 3
Vet.App. 310, 313 (1992) (en banc).
Clear and unmistakable error is a very specific and unique
type of error. It is the kind of legal or factual error that
demands the conclusion that the result of the decision would
have been greatly different but for the error. Even where
the premise of error is accepted, if it is not absolutely
clear that a different result would have ensued, the error
complained of cannot be clear and unmistakable. Russell v.
Principi, 3 Vet.App. 310 (1992).
However, simply to claim clear and unmistakable error on the
basis that previous adjudications had improperly weighted and
evaluated the evidence can never rise to the stringent
definition of clear and unmistakable error. Also, broad
allegations of failure to follow regulations or any other
non-specific claim of error does not classify as clear and
unmistakable error. See Russell v. Principi, 3 Vet.App. 310
(1992); Fugo v. Brown, 6 Vet.App. 40 (1993), motion for
review en banc denied Feb. 3, 1994 (per curium). If a
veteran raises clear and unmistakable error, there must be
some degree of specificity as to what the alleged error is
and, that if true, would be clear and unmistakable error on
its face, with persuasive reasons given as to why the result
would have been manifestly different but for the alleged
error. Id., Scott v. Brown, 7 Vet.App. 184, 191 (1994).
Additionally, a “. . . determination that there was ‘clear
and unmistakable error’ must be based on the record and the
law that existed at the time of the prior AOJ or BVA
decision.” Russell v. Principi, 3 Vet.App. 310, at 314
(1992). Either the correct facts, as they were known at the
time, were not before the adjudicator, or the statutory or
regulatory provisions existent at the time were incorrectly
applied. Olson v. Brown, 5 Vet.App. 430, 433 (1993). There
must be more than a disagreement as to how the facts were
weighted or evaluated, and the error must be outcome
determinative. Russell v. Principi, 3 Vet.App. 310, 313
(1992). If there was a clear error in judgment or the
conclusion was not based on a consideration of the relevant
factors involved in the claim or not in accordance with the
law, the Board must decide that a clear and unmistakable
error was made, and reverse the prior decision. Mason v.
Brown, 8 Vet.App. 44 (1995); Porter v. Brown, 5 Vet.App. 233
(1993); Olson v. Brown, 5 Vet.App. 430; Russell v. Principi,
3 Vet.App. 310 (1992).
We believe that the issue of whether the 1954 rating decision
was clearly and unmistakably erroneous is “inextricably
intertwined” with the adjudication regarding whether new and
material evidence has been submitted to reopen a claim for
service connection for bilateral pes planus. Consequently,
we find that the case must be remanded so that the RO may
consider the issue of whether clear and unmistakable error
has been made. The RO must issue the veteran a supplemental
statement of the case. Akins v. Derwinski, 1 Vet.App. 228
(1991); Hayes v. Derwinski, 1 Vet.App. 186 (1991).
Accordingly, this case is REMANDED to the RO for the
following actions:
1. The RO will forward the claim to the
VA Regional Medical Center where it will
be reviewed by a staff podiatrist. The
RO should ask the podiatrist to clarify
the difference between first and second
degree bilateral pes planus. Also, the
podiatrist should explain how the
veteran’s bilateral pes planus could be
“asymptomatic”. The podiatrist’s report
should then be included in the claims
folder and said folder should be returned
to the RO for further adjudication.
2. The RO should then adjudicate the
claim regarding whether the April 5,
1954, rating decision of the agency of
original jurisdiction, which denied
entitlement to service connection for
bilateral pes planus, contained clear and
unmistakable error based on the record at
that time.
3. If no error is found in the 1954
rating action, the RO should readjudicate
the second issue on appeal, as stated on
the cover page of this determination,
taking into account the results of the
development requested herein.
Following completion of the foregoing, the RO should review
the claim again. If the benefit sought on appeal is not
granted, the veteran and his representative should be given a
supplemental statement of the case and provided a reasonable
opportunity to respond. Then, the matter should be referred
back to the Board for final appellate consideration, if
appropriate.
No action by the veteran or his representative is required
until further notice is received. No opinion, either legal
or factual, is intimated as to the merits of the veteran’s
claims by this remand. The purpose of this remand is to
satisfy due process.
JACK W. BLASINGAME
Member, Board of Veterans’ Appeals
(CONTINUED ON NEXT PAGE)
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans’ Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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